Rutherford College City Zoning Code

WIRELESS TELECOMMUNICATIONS

§ 152.140 PURPOSE AND LEGISLATIVE INTENT.

(A) The Telecommunications Act of 1996 affirmed the town’s authority concerning the placement, construction and modification of wireless telecommunications facilities.

(B) The town finds that wireless telecommunications facilities may pose significant concerns to the health, safety, public welfare, character and environment of the town and its inhabitants.

(C) The town also recognizes that facilitating the development of wireless service technology can be an economic development asset and significant benefit to the town and its residents.

(D) In order to ensure that the placement, construction or modification of wireless telecommunications facilities is consistent with the town’s land use policies, the town is adopting a single, comprehensive, wireless telecommunications facilities application and permit process.

(E) The intent of this subchapter is to minimize the negative impact of wireless telecommunications facilities, establish a fair and efficient process for review and approval of applications, assure an integrated, comprehensive review of environmental impacts of such facilities, and protect the health, safety and welfare of the town.

(Ord. passed 4-5-2010; Ord. passed 5-3-2021)

§ 152.141 TITLE.

This subchapter shall be known and cited as the “Wireless Telecommunications Subchapter for the Town of Rutherford College”.

(Ord. passed 4-5-2010; Ord. passed 5-3-2021)

§ 152.142 SEVERABILITY; SPECIAL USE PERMIT.

(A) If any word, phrase, sentence, part, section, division or other portion of this subchapter or any application thereof to any person or circumstance is declared void, unconstitutional or invalid for any reason, then such word, phrase, sentence, part, section, division or other portion, or the proscribed application thereof, shall be severable, and the remaining provisions of this subchapter, and all applications thereof, not having been declared void, unconstitutional or invalid, shall remain in full force and effect.

(B) Any special use permit issued under this subchapter shall be comprehensive and not severable. If part of a permit is deemed or ruled to be invalid or unenforceable in any material respect, by a competent authority, or is overturned by a competent authority, the permit shall be void in total, upon determination by the town.

(Ord. passed 4-5-2010; Ord. passed 5-3-2021)

§ 152.143 DEFINITIONS.

For the purpose of this subchapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

ACCESSORY FACILITY OR STRUCTURE. An accessory facility or structure serving or being used in conjunction with wireless telecommunications facilities, and located on the same property or lot as the wireless telecommunications facilities, including, but not limited to, utility or transmission equipment storage sheds or cabinets.

ANTENNA. A system of electrical conductors that transmit or receive electromagnetic waves or radio frequency or other wireless signals. Such shall include, but not be limited to radio, television, cellular, paging, personal telecommunications services (PCS), microwave telecommunications and services not licensed by the FCC, but not expressly exempt from the town’s siting, building and permitting authority.

APPLICANT. Any wireless service provider submitting an application for a special use permit for wireless telecommunications facilities.

APPLICATION. All necessary and appropriate documentation that an applicant submits in order to receive a special use permit for wireless telecommunications facilities.

CO-LOCATION. The use of a tower or structure to support antennae for the provision of wireless services without increasing the height of the tower or structure.

COMMERCIAL IMPRACTICABILITY OR COMMERCIALLY IM PRACTICABLE. The inability to perform an act on terms that are reasonable in commerce, the cause or occurrence of which could not have been reasonably anticipated or foreseen and that jeopardizes the financial efficacy of the project. The inability to achieve a satisfactory financial return on investment or profit, standing alone, shall not deem a situation to be COMMERCIAL IMPRACTICABLE and shall not render an act or the terms of an agreement COMMERCIALLY IMPRACTICABLE.

COMPLETED APPLICATION. An application that contains all information and/or data necessary to enable an informed decision to be made with respect to an application.

COUNCIL. The Rutherford College Town Council.

FAA. The Federal Aviation Administration, or its duly designated and authorized successor agency.

FCC. The Federal Communications Commission, or its duly designated and authorized successor agency.

HEIGHT. When referring to a tower or structure, the distance measured from the pre-existing grade level to the highest point on the tower or structure, even if said highest point is an antenna or lightening protection device.

NIER. Non-ionizing electromagnetic radiation.

PERSON. Any individual, corporation, estate, trust, partnership, joint stock company, association of two or more persons having a joint common interest or any other entity.

PERSONAL WIRELESS FACILITY. See definition for WIRELESS TELECOMMUNICATIONS FACILITIES.

PERSONAL WIRELESS SERVICES, PWS, PERSONAL TELECOMMUNICATIONS SERVICE OR PCS. Has the same meaning as defined and used in the 1996 Telecommunications Act.

SITE, TELECOMMUNICATIONS. See definition for WIRELESS TELECOMMUNICATIONS FACILITIES.

SPECIAL USE PERMIT. The official document or permit by which an applicant is allowed to construct and use wireless telecommunications facilities as granted or issued by the town.

STATE. The State of North Carolina.

STEALTH OR STEALTH TECHNOLOGY. Minimize adverse aesthetic and visual impacts on the land, property, buildings and other facilities adjacent to, surrounding and in generally the same area as the requested location of such wireless telecommunications facilities, which shall mean using the least visually and physically intrusive facility that is not technologically or commercially impracticable under the facts and circumstances.

TELECOMMUNICATIONS. The transmission and/or reception of audio, video, data and other information by wire, radio frequency, light and other electronic or electromagnetic systems.

TELECOMMUNICATIONS STRUCTURE. A structure used in the provision of services described in the definition of WIRELESS TELECOMMUNICATIONS FACILITIES.

TEMPORARY. Temporary in relation to all aspects and components of this subchapter or something intended to, or that does, exist for fewer than 90 days.

WIRELESS TELECOMMUNICATIONS FACILITIES.

(1) Includes a TELECOMMUNICATIONS TOWER and TOWER and TELECOMMUN-ICATIONS SITE and PERSONAL WIRELESS FACILITY.

(2) A structure, facility or location designed, or intended to be used as, or used to support, antennas or other transmitting or receiving devices. This includes, without limit, towers of all types and kinds and structures that employ camouflage technology, including, but not limited to, structures such as a multi-story building, church steeple, silo, water tower, sign or other structures that can be used to mitigate the visual impact of an antenna or the functional equivalent of such, including all related facilities such as cabling, equipment shelters and other structures associated with the site.

(3) It is a structure and facility intended for transmitting and/or receiving radio, television, cellular, paging, 911, personal telecommunications services, commercial satellite services, microwave services and services not licensed by the FCC, but not expressly exempt from the town's siting, building and permitting authority, excluding those used exclusively for the town’s fire, police or exclusively for private, non-commercial radio and television reception and private citizen's bands, amateur radio and other similar non-commercial telecommunications where the height of the facility is below the height limits set forth in this subchapter.

(Ord. passed 4-5-2010; Ord. passed 5-3-2021)

§ 152.144 OVERALL POLICY AND DESIRED GOALS FOR SPECIAL USE PERMITS FOR WIRELESS TELECOMMUNICATIONS FACILITIES.

In order to ensure that the placement, construction and modification of wireless telecommunications facilities protects the town’s health, safety, public welfare, environmental features, the nature and character of the community and neighborhood and other aspects of the quality of life specifically listed elsewhere in this subchapter, the town hereby adopts an overall policy with respect to a special use permit for wireless telecommunications facilities for the express purpose of achieving the following goals:

(A) Implementing an application process for person(s) seeking a special use permit for wireless telecommunications facilities;

(B) Establishing a policy for reviewing and analyzing an application for, and issuing, a special use permit for wireless telecommunications facilities that is both fair and consistent;

(C) Promoting and encouraging, wherever possible, alternatives to constructing new towers, including, but not limited to, the co-location of wireless telecommunications facilities and mitigating the visual effect of a wireless telecommunications facility to extent not commercially impracticable;

(D) Promoting and encouraging, wherever possible, the placement, height and quantity of wireless telecommunications facilities in such a manner, including but not limited to the use of stealth technology or camouflage techniques, to minimize adverse aesthetic and visual impacts on the land, property, buildings and other facilities adjacent to, surrounding, and in generally the same area as the requested location of such wireless telecommunications facilities, which shall mean using the least visually and physically intrusive facility that is not technologically or commercially impracticable under the facts and circumstances; and

(E) Assuring that any wireless telecommunications facilities are designed and constructed so as to be structurally sound and otherwise safe.

(Ord. passed 4-5-2010; Ord. passed 5-3-2021)

§ 152.145 SPECIAL USE PERMIT APPLICATION AND OTHER REQUIREMENTS.

(A) All applicants for a special use permit for wireless telecommunications facilities or any modification of such facility shall comply with the requirements set forth in this subchapter.

(1) The Board of Adjustment is the officially designated agency or body of the town to whom applications for a special use permit for wireless telecommunications facilities must be made, and that is authorized to review, analyze, evaluate and make decisions with respect to granting or not granting, re-certifying or not re-certifying, or revoking special use permits for wireless telecommunications facilities.

(2) The Board of Adjustment may at its discretion delegate or designate other official agencies of the town to accept, review, analyze, evaluate and make recommendations to the Board of Adjustment with respect to the granting or not granting, re-certifying or not re-certifying or revoking special use permits for wireless telecommunications facilities.

(B) An application for a special use permit for wireless telecommunications facilities shall be signed on behalf of the applicant by the person preparing the same and with knowledge of the contents and representations made therein and attesting to the truth and completeness of the information. The landowner, if different than the applicant, shall also sign the application. At the discretion of the town, any false or misleading statement in the application may subject the applicant to denial of the application without further consideration or opportunity for correction.

(C) Applications not meeting the requirements stated herein or which are otherwise incomplete may be rejected by the town.

(D) The applicant shall include a statement in writing:

(1) The applicant’s proposed wireless telecommunications facilities shall be maintained in a safe manner, and in compliance with all conditions of the special use permit, without exception, unless specifically granted relief by the town in writing, as well as all applicable and permissible local codes, ordinances and regulations, including any and all applicable town, state and federal laws, rules and regulations; and

(2) The construction of the wireless telecommunications facilities is legally permissible, including, but not limited to, the fact that the applicant is authorized to do business in the state.

(E) No wireless telecommunications facilities shall be installed or constructed until the application is reviewed and approved by the town, and the special use permit has been issued.

(F) No tower owner or manager shall be permitted to submit an application for a special use permit for a tower if the tower owner does not have a signed agreement committing a commercial service provider to occupy space on the tower.

(G) All applications for the construction or installation of new wireless telecommunications facilities shall contain the information hereinafter set forth.

(1) An authorized individual on behalf of the applicant shall sign the application.

(2) Where a certification is called for, such certification shall bear the signature and seal of a professional engineer licensed in the state.

(3) The application shall include the following information:

(a) Documentation that demonstrates the need for the wireless telecommunications facility to provide service primarily and essentially within the town. Such documentation shall include, but may not be limited to, propagation studies of the proposed site and all existing, adjoining and proposed sites;

(b) The name, address and phone number of the person responsible for preparing the application;

(c) The name, address and phone number of the property owner, service provider or operator, and the actual applicant, and to include the legal form of the applicant;

(d) The postal address and tax map parcel number of the property;

(e) The zoning district or designation in which the property is situated;

(f) Size of the property stated both in square feet and lot line dimensions, and a diagram showing the location of all lot lines;

(g) The location of nearest residential structure;

(h) The location, size and height of all structures on the property which is the subject of the application;

(i) The location, size and height of all proposed and existing antennae and all appurtenant structures;

(j) The type, locations and dimensions of all proposed and existing landscaping, and fencing;

(k) The number, type and design of the tower(s) and antenna(s) proposed and the basis for the calculations of the tower’s capacity to accommodate multiple users;

(l) The make, model and manufacturer of the tower and antenna(s);

(m) A description of the proposed tower and antenna(s) and all related fixtures, structures, appurtenances and apparatus, including height above pre-existing grade, materials, color and lighting;

(n) The frequency, modulation and class of service of radio or other transmitting equipment;

(o) The actual intended transmission and the maximum effective radiated power of the antenna(s);

(p) Direction of maximum lobes and associated radiation of the antenna(s);

(q) Certification that the NIER levels at the proposed site are within the threshold levels adopted by the FCC;

(r) Certification that the proposed antenna(s) will not cause interference with other telecommunications devices;

(s) A copy of the FCC license applicable for the intended use of the wireless telecommunications facilities;

(t) Certification that a topographic and geomorphologic study and analysis has been conducted, and that taking into account the subsurface and substrata, and the proposed drainage plan, that the site is adequate to assure the stability of the proposed wireless telecommunications facilities on the proposed site; and

(u) For a new tower, a narrative explaining how the proposed facility is the least visually and physically intrusive means possible that is neither commercially nor technically impracticable, along with a photographic or other graphic representations of the proposed facility in color as may be deemed necessary.

(H) In the case of a new tower, the applicant shall be required to submit a written report demonstrating its meaningful efforts to secure shared use of existing tower(s) or the use of alternative buildings or other structures within the town. Copies of written requests and responses for shared use shall be provided to the town in the application, along with any letters of rejection stating the reason for rejection.

(I) The applicant shall certify that the wireless telecommunication facility, foundation and attachments are designed and will be constructed to meet all local, town, state and federal structural requirements for loads, including wind and ice loads.

(J) The applicant shall certify that the wireless telecommunications facilities will be effectively grounded and bonded so as to protect persons and property and installed with appropriate surge protectors.

(K) An applicant may be required to submit an environmental assessment analysis and a visual addendum. Based on the results of the analysis, including the visual addendum, the town may require submission of a more detailed visual analysis. The scope of the required environmental and visual assessment will be reviewed at the pre-application meeting.

(L) The applicant shall furnish a visual impact assessment, which shall include:

(1) A “zone of visibility map” which shall be provided in order to determine locations from which the tower may be seen;

(2) Pictorial representations of “before and after” views from key viewpoints both inside and outside of the town as may be appropriate, including, but not limited to, state highways and other major roads; state and local parks; other public lands; historic districts; preserves and historic sites normally open to the public; and from any other location where the site is visible to a large number of visitors, travelers or residents. Guidance will be provided, concerning the appropriate key viewpoints at a pre-application meeting;

(3) An assessment of the visual impact of the tower base, guy wires and accessory buildings from abutting and adjacent properties and streets as relates to the need or appropriateness of screening; and

(4) The base of the tower, any guy wires, and any associated structures, walls or fences shall be surrounded by a landscaped buffer. A ten-foot buffer shall be provided between the tower and the property boundaries in all zones other than residential. In all residential zones, the buffer shall be a minimum of 25 feet in width. The planting shall consist of deciduous or evergreen trees and evergreen shrubs. The trees shall be planted along the full length of the buffer strip in a triangular pattern with a maximum spacing of 25 feet on centers. The minimum height at planting for trees shall be six feet and they shall have an expected minimum maturity height of 35 feet under normal growing conditions. There shall also be one row of dense shrubs, spaced not more than eight feet on centers. Shrubs shall be a minimum of two feet high at planting and shall have a minimum expected maturity height of eight feet under normal growing conditions. It is the intent of this subchapter to encourage the use of existing vegetation in whole or in part to substantially meet this requirement.

(M) The applicant shall demonstrate and provide in writing and/or by drawing how it shall effectively screen from view the base and all related facilities and structures of the proposed wireless telecommunications facilities.

(N) Any and all representations made by the applicant to the town on the record during the application process, whether written or verbal, shall be deemed a part of the application and may be relied upon in good faith by the town.

(O) All utilities at a wireless telecommunications facilities site shall be installed underground and in compliance with all laws, sections, rules and regulations of the town, including specifically, but not limited to, the National Electrical Safety Code and the National Electrical Code where appropriate.

(P) All applications shall contain a demonstration that the facility be sited so as to have the least visually intrusive effect reasonably possible and thereby have the least adverse visual effect on the environment and the nature and character of the community, on existing vegetation, and on the residences in the area of the wireless telecommunications facility.

(Q) Both the wireless telecommunications facility and any and all accessory or associated facilities shall maximize the use of building materials, colors and textures designed to blend with the structure to which it may be affixed and/or to harmonize with the natural surroundings; this shall include the utilization of stealth or concealment technology as may required by the town to the extent that it is not commercially impracticable or technically impracticable.

(R) At a wireless telecommunications site, an access road, turn around space and parking shall be provided to assure adequate emergency and service access. Maximum use of existing roads, whether public or private, shall be made to the extent practicable. Road construction shall at all times minimize ground disturbance and the cutting of vegetation. Road grades shall closely follow natural contours to assure minimal visual disturbance and reduce soil erosion.

(S) A person holding a special use permit for wireless telecommunications facilities shall construct, operate, maintain, repair, provide for removal of, modify or restore the permitted wireless telecommunications facilities in strict compliance with all current applicable technical, safety and safety-related codes adopted by the town, state or United States, including, but not limited to, the most recent editions of the National Electrical Safety Code and the National Electrical Code, as well as accepted and responsible workmanlike industry practices and recommended practices of the National Association of Tower Erectors. The codes referred to are codes that include, but are not limited to, construction, building, electrical, fire, safety, health and land use codes. In the event of a conflict between or among any of the preceding the more stringent shall apply.

(T) A holder of a special use permit granted under this subchapter shall obtain, at its own expense, all permits and licenses required by applicable law, rule, regulation or code, and must maintain the same, in full force and effect, for as long as required by the town or other governmental entity or agency having jurisdiction over the applicant.

(U) An applicant shall submit to the town the number of completed applications determined to be needed at the pre-application meeting. Written notification of the application shall be provided to the legislative body of all adjacent municipalities and counties and to the town Planning Department.

(V) If a new tower is proposed, the application shall contain a commitment to design and construct the tower to accommodate at least five additional commercial applications or service providers, assuming antenna arrays equivalent to those of the applicant, and located as close to the applicant’s antenna as possible without causing interference. This requirement may be waived, provided that the applicant, in writing, demonstrates that the provisions of future shared use of the tower is not technologically feasible, is commercially impracticable or creates an unnecessary and unreasonable burden, based upon:

(1) The foreseeable number of FCC licenses available for the area;

(2) The kind of wireless telecommunications facilities site and structure proposed;

(3) The number of existing and potential licenses without wireless telecommunications facilities spaces/sites; and

(4) Available space on existing and approved towers.

(W) The owner of the proposed new tower, and his or her successors in interest, shall negotiate in good faith for the shared use of the proposed tower by other wireless service providers in the future, and shall:

(1) Respond within 60 days to a request for information from a potential shared-use applicant;

(2) Negotiate in good faith concerning future requests for shared use of the new tower by other telecommunications providers, including a reasonable rate of compensation; and

(3) Allow shared use of the new tower if another telecommunications provider agrees in writing to pay a reasonable rate of compensation. The rate may include, but not be limited to, a pro rata share of the cost of site selection, planning, project administration, land costs, site design, construction and maintenance financing, return on equity, less depreciation and all of the costs of adapting the tower or equipment to accommodate a shared user without causing electromagnetic interference.

(4) Failure to abide by the conditions outlined above may be grounds for revocation of the special use permit for the tower.

(X) There shall be a site visit, if there has not been a prior site visit for the requested site in the preceding 12 months, and a pre-application meeting, both of which shall be prior to the submittal of any application, the purpose of which shall be to address issues which will help expedite the review and permitting process and any concerns regarding the site or the facility and the treatment of such. Costs of the town’s consultants to prepare for and attend the pre-application meeting will be borne by the applicant.

(Y) The holder of a special use permit shall notify the town of any intended modification of a wireless telecommunication facility and shall apply to the town to modify, relocate or rebuild a wireless telecommunications facility.

(Z) In order to better inform the public, in the case of a new telecommunication tower, the applicant shall, prior to the public hearing on the application, hold a “balloon test”.

(1) The applicant shall arrange to fly, or raise upon a temporary mast, a minimum of a three-foot in diameter brightly colored balloon at the maximum height of the proposed new tower.

(2) The dates, (including a second date, in case of poor visibility on the initial date) times and location of this balloon test shall be advertised by the applicant seven and 14 days in advance of the first test date in a newspaper with a general circulation in the town.

(3) The applicant shall inform the town, in writing, of the dates and times of the test, at least 14 days in advance.

(4) The balloon test shall be flown for at least four consecutive hours sometime between 7:00 a.m. and 4:00 p.m. on the dates chosen.

(5) The primary date shall be on a weekend, but to prevent delays in the processing of the application, in case of poor weather on the initial date, the secondary date may be on a weekday.

(AA) The applicant will provide a written copy of an analysis, completed by a qualified individual or organization, to determine if the tower or existing structure intended to support wireless facilities requires lighting under Federal Aviation Administration Regulation Part 77. This requirement shall be for any new tower or for an existing structure or building where the application increases the height of the structure or building. If this analysis determines that the FAA must be contacted, then all filings with the FAA, all responses from the FAA and any related correspondence shall be provided in a timely manner.

(BB) Applications shall be submitted in a three-ring binder. The application shall contain a table of contents, which shall list each section, subsection and the issue required to be addressed. Requests for waiver shall be clearly set forth and indicated in the table of contents, with an explanation for the request for waiver contained in the appropriate section of the application. Each issue or matter addressed in the ordinance that requires a response shall be set forth in a separate section, i.e., tab, in the application, including requests for waiver.

(Ord. passed 4-5-2010; Ord. passed 5-3-2021)

§ 152.146 LOCATION OF WIRELESS TELECOMMUNICATIONS FACILITIES.

(A) To protect the visual qualities of the center of the town and to protect public safety, new towers shall be prohibited from the following areas:

(1) Within 1,000 feet of each side of Malcolm Boulevard for the area beginning north of I-40 and extending to Talmon Street; and

(2) Within a 1,000 feet zone of the school property located on Honeycutt Drive.

(B) Applicants for wireless telecommunications facilities shall locate, site and erect said wireless telecommunications facilities in accordance with the following priorities, one being the highest priority and six being the lowest priority.

(1) On existing towers or other structures without increasing the height of the tower or structure;

(2) On town-owned properties;

(3) On properties in areas zoned General Manufacturing;

(4) On properties in areas zoned Highway Business;

(5) On properties in areas zoned Office-Institutional;

(6) On properties in areas zoned Central Business; and

(7) On properties in areas zoned Residential.

(C) If the proposed site is not proposed for the highest priority listed above, then a detailed explanation must be provided as to why a site of a higher priority was not selected. The person seeking such an exception must satisfactorily demonstrate the reason or reasons why such a permit should be granted for the proposed site and the hardship that would be incurred by the applicant if the permit were not granted for the proposed site.

(D) An applicant may not defend or justify bypassing sites of a higher priority by claiming the site proposed is the only site leased or selected. All applications shall address co-location as an option. If such option is not proposed, the applicant must explain to the reasonable satisfaction of the town why co-location is commercially or otherwise impracticable. Agreements between providers limiting or prohibiting co-location shall not be a valid basis for any claim of commercial impracticability or hardship.

(E) Notwithstanding the above, the town may approve any site located within an area in the above list of priorities, provided that the town finds that the proposed site is in the best interest of the health, safety and welfare of the town and its inhabitants and will not have a negative effect on the nature and character of the community and neighborhood.

(F) The applicant shall submit a written report demonstrating the applicant's review of the above locations in order of priority, demonstrating the technological reason for the site selection. If appropriate, based on selecting a site of lower priority, a detailed written explanation as to why sites of a higher priority were not selected shall be included with the application.

(G) Notwithstanding that a potential site may be situated in an area of highest priority or highest available priority, the town may disapprove an application for any of the following reasons:

(1) Conflict with safety and safety-related codes and requirements;

(2) Conflict with the historic nature or character of the community, a neighborhood or a historical district;

(3) The use or construction of wireless telecommunications facilities which is contrary to an already stated purpose of a specific zoning or land use designation;

(4) The placement and location of wireless telecommunications facilities which would create an unacceptable risk, or the reasonable probability of such, to residents, the public, employees and agents of the town, or employees of the service provider or other service providers; and/or

(5) Conflicts with the provisions of this subchapter.

(Ord. passed 4-5-2010; Ord. passed 5-3-2021)

§ 152.147 SHARED USE OF FACILITIES AND OTHER STRUCTURES.

(A) Locating on existing towers or others structures without increasing the height shall be preferred by the town, as opposed to the construction of a new tower. The applicant shall submit a comprehensive report inventorying existing towers and other functionally suitable structures within four miles of the location of any proposed new tower, unless the applicant can show that some other distance is more reasonable and demonstrate conclusively why an existing tower or other suitable structure cannot be used.

(B) An application to co-locate on an existing tower or other suitable structure shall contain proof of the intent of the existing owner to permit its use by the applicant.

(C) Such shared use shall consist of only the minimum antenna array technologically required to provide service primarily and essentially within the town, to the extent practicable, unless good cause is shown.

(Ord. passed 4-5-2010; Ord. passed 5-3-2021)

§ 152.148 HEIGHT OF TELECOMMUNICATIONS TOWER(S).

(A) The applicant shall submit documentation justifying the total height of any tower, facility and/or antenna and the basis therefore. Such documentation will be analyzed in the context of the justification of the height needed to provide service primarily and essentially within the town, to the extent practicable, unless good cause is shown.

(B) Unless otherwise granted relief or a waiver, the maximum permitted height of a new tower shall be no taller than the applicant service provider can prove is the minimum height necessary to provide service primarily to provide a balanced link (both up and down link) service in the area of no service. Such proof shall be provided using RF propagation studies showing the height of attachment of the array, the ERP (effective radiated power) stated in watts, the direction or azimuth of each of the maximum lobes, any designed or intended pitch or down-tilt of any of the sector panels. At a minimum an applicant for a tower shall provide one set of RF propagation studies on clear acetate overly showing all existing sites adjacent to the search ring that shows the gap in coverage. Another set of propagation studies shall be provided showing the lowest height at which service can be provided in the search ring and another set shall be provided computed at ten feet below the minimum height necessary to provide service in the search ring. The town retains the right to determine the adequacy of the needed information provided as regards the determination of need for the requested height.

(C) No tower constructed after the effective date of this chapter, including allowing for all attachments, shall exceed that height which shall permit operation without required artificial lighting of any kind as may be required by municipal, county, state and/or any federal statute, law, ordinance, code, rule or regulation.

(Ord. passed 4-5-2010; Ord. passed 5-3-2021)

§ 152.149 APPEARANCE AND VISIBILITY OF WIRELESS TELECOMMUNICATIONS FACILITIES.

(A) Wireless telecommunications facilities shall not be artificially lighted or marked, except as required by law.

(B) Towers shall be galvanized and painted with a rust-preventive paint of an appropriate color to harmonize with the surroundings and shall be maintained in accordance with the requirements of this subchapter and any conditions of the special use permit.

(C) If lighting is required, applicant shall provide a detailed plan for sufficient lighting of as unobtrusive and inoffensive an effect as is permissible under state and federal regulations.

(Ord. passed 4-5-2010; Ord. passed 5-3-2021)

§ 152.150 SECURITY OF WIRELESS TELECOMMUNICATIONS FACILITIES.

All wireless telecommunications facilities and antennas shall be located, fenced or otherwise secured in a manner that prevents unauthorized access. Specifically:

(A) All antennas, towers and other supporting structures, including guy wires, shall be made inaccessible to individuals and constructed or shielded in such a manner that they cannot be climbed or collided with.

(B) Transmitters and telecommunications control points shall be installed such a manner that they are readily accessible only to persons authorized to operate or service them.

(C) The base of tower facilities shall be enclosed by a decay resistant security fence or wall at least eight feet in height unless the tower and all guy anchors are mounted entirely on a limited access building at least eight feet in height.

(Ord. passed 4-5-2010; Ord. passed 5-3-2021)

§ 152.151 SIGNAGE.

Wireless telecommunications facilities shall contain a sign no larger than four square feet in order to provide adequate notification to persons in the immediate area of the presence of an antenna that has transmission capabilities and shall contain the name(s) of the owner(s) and operator(s) of the antenna(s) as well as emergency phone number(s). The sign shall be on the equipment shelter or cabinet of the applicant and be visible from the access point of the site and must identify the equipment owner of the shelter or cabinet. The sign shall not be lighted, unless applicable law, rule or regulation requires lighting. No other signage, including advertising, shall be permitted, unless required by applicable law, rule or regulation.

(Ord. passed 4-5-2010; Ord. passed 5-3-2021)

§ 152.152 LOT SIZE AND SETBACKS.

(A) All proposed towers and any other proposed wireless telecommunications facility support structures shall be set back from abutting parcels, recorded rights-of-way and road and street lines by the greater of the following distances: a distance equal to the height of the proposed tower or wireless telecommunications facility structure plus 10% of the height of the tower or structure, or the existing setback requirement of the underlying zoning district, whichever is greater.

(B) Any accessory structure shall be located so as to comply with the applicable minimum setback requirements for the property on which it is situated.

(Ord. passed 4-5-2010; Ord. passed 5-3-2021)

§ 152.153 RETENTION OF EXPERT ASSISTANCE AND REIMBURSEMENT BY APPLICANT.

(A) The town may hire any consultant and/or expert necessary to assist the town in reviewing, analyzing and evaluating the application, including the construction and modification of the site, once permitted, and any requests for re-certification.

(B) An applicant shall deposit with the town funds sufficient to reimburse the town for all reasonable costs of a consultant and any expert evaluation and consultation to the town in connection with the review of any application, including the construction and modification of the site, once permitted. The initial deposit shall be $7,500, which deposit is not a fee. The placement of the $7,500 with the town shall precede the pre-application site visit and meeting. The town will maintain a separate escrow account for all such funds. Consultants shall invoice the town for services in reviewing the application, including the construction and modification of the site, once permitted, and the town shall use this escrow to pay the consultant.

(C) If at any time during the process the escrow account has a balance less than $2,500, the applicant shall immediately, upon notification by the town, replenish said escrow account so that it has a balance of at least $5,000. Such additional escrow funds shall be deposited with the town before any further action or consideration is taken on the application. In the event that the amount held in escrow by the town is more than the amount of the actual invoicing at the conclusion of the project, the remaining balance shall be promptly refunded to the applicant.

(D) The total amount of the funds needed as set forth in division (B) above may vary with the scope and complexity of the project, the completeness of the application and other information as may be needed to complete the necessary review, analysis and inspection of any construction or modification.

(Ord. passed 4-5-2010; Ord. passed 5-3-2021)

§ 152.154 EXCEPTIONS FROM A SPECIAL USE PERMIT FOR FACILITIES.

(A) As of the effective date of this chapter, no person shall be permitted to site, place, build, construct, modify or prepare any site for the placement or use of wireless telecommunications facilities without having first obtained a special use permit for wireless telecommunications facilities. Notwithstanding anything to the contrary in this subchapter, no special use permit shall be required for those non-commercial exceptions noted in the definition of wireless telecommunications facilities in § 152.143.

(B) All wireless telecommunications facilities existing on or before the effective date of this chapter shall be allowed to continue as they presently exist; provided however, that any visible modification of an existing wireless telecommunications facility must comply with this subchapter, including making application for such modification.

(Ord. passed 4-5-2010; Ord. passed 5-3-2021)

§ 152.155 PUBLIC HEARING AND NOTIFICATION REQUIREMENTS.

(A) Prior to the approval of any application for a special use permit for wireless telecommunications facilities, a public hearing shall be held by the town, notice of which shall be published in the official newspaper of the town no less than ten calendar days prior to the scheduled date of the public hearing. In order that the town may notify nearby landowners, the application shall contain the names and address of all landowners whose property is located within 1,500 feet of any property line of the lot or parcel on which the new wireless telecommunications facilities are proposed to be located.

(B) There shall be no public hearing required for an application to co-locate on an existing tower or other structure, as long as there is no proposed increase in the height of the tower or structure, including attachments thereto.

(C) The town shall schedule the public hearing referred to in division (A) above once it finds the application is complete, and the town, at any stage prior to issuing a special use permit, may require such additional information as is deemed reasonable necessary for an informed determination and decision to be made.

(Ord. passed 4-5-2010; Ord. passed 5-3-2021)

§ 152.156 ACTION ON AN APPLICATION FOR A SPECIAL USE PERMIT FOR FACILITIES.

(A) The town will undertake a review of an application pursuant to this subchapter in a timely fashion, and shall act within a reasonable period of time given the relative complexity of the application and the circumstances involved, with due regard for the public’s interest and need to be involved, and the applicant’s desire for a timely resolution.

(B) The town may refer any application or part thereof to any advisory or other committee for a non-binding recommendation.

(C) After the public hearing and after formally considering the application, the town may approve, approve with conditions, or deny a special use permit. In a case involving co-location, conditions of the special use permit may be addressed as an administrative procedure not requiring Board action. The decision to grant or not grant a special use permit shall be in writing and shall be supported by substantial evidence contained in a written record. The burden of proof for the grant of the permit shall always be upon the applicant.

(D) If the town approves the special use permit for wireless telecommunications facilities, then the applicant shall be notified of such approval in writing within ten calendar days of the town’s action, and the special use permit shall be issued within 30 days after such approval. Except for necessary building permits and subsequent certificates of compliance, once a special use permit has been granted hereunder, no additional permits or approvals from the town, such as site plan or zoning approvals, shall be required by the town for the wireless telecommunications facilities covered by the special use permit.

(E) If the town denies the special use permit for wireless telecommunications facilities, then the applicant shall be notified of such denial in writing within ten calendar days of the town’s action.

(Ord. passed 4-5-2010; Ord. passed 5-3-2021)

§ 152.157 RE-CERTIFICATION OF A SPECIAL USE PERMIT FOR FACILITIES.

(A) Between 12 months and six months prior to the five-year anniversary date after the effect date of the special use permit and all subsequent five-year anniversaries of the effective date of the original special use permit for wireless telecommunications facilities, the holder of a special use permit for such wireless telecommunication facilities shall submit a signed written request to the town for re-certification. In the written request for re-certification, the holder of such special use permit shall note the following:

(1) The name of the holder of the special use permit for the wireless telecommunications facilities;

(2) If applicable, the number or title of the special use permit;

(3) The date of the original grant of the special use permit;

(4) Whether the wireless telecommunications facilities have been moved, re-located, rebuilt or otherwise visibly modified since the issuance of the special use permit and if so, in what manner;

(5) If the wireless telecommunications facilities have been moved, re-located, rebuilt or otherwise visibly modified, then whether the town approved such action, and under what terms and conditions, and whether those terms and conditions were complied with;

(6) That the wireless telecommunications facilities are in compliance with the special use permit and compliance with all applicable codes, laws, rules and regulations; and

(7) Re-certification that the tower and attachments both are designed and constructed and continue to meet all municipal, county, state and federal structural requirements for loads, including wind and ice loads. Such re-certification shall be by a professional engineer licensed in the state, the cost of which shall be borne by the applicant.

(B) If, after such review, the town determines that the permitted wireless telecommunications facilities are in compliance with the special use permit and all applicable statutes, laws, local laws, ordinances, codes, rules and regulations, then the town issue a re-certification of the special use permit for the wireless telecommunications facilities, which may include any new provisions or conditions that are mutually agreed upon, or that are required by applicable statutes, laws, ordinances, codes, rules or regulations. If, after such review, it is determined that the permitted wireless telecommunications facilities are not in compliance with the special use permit and all applicable statutes, laws, ordinances, codes, rules and regulations, then the town may refuse to issue a re- certification special use permit for the wireless telecommunications facilities, and in such event, such wireless telecommunications facilities shall not be used after the date that the applicant receives written notice of the decision by the town until such time as the facility is brought into compliance. Any decision requiring the cessation of use of the facility or imposing a penalty shall be in writing and supported by substantial evidence contained in a written record and shall be promptly provided to the owner of the facility.

(C) If the applicant has submitted all of the information requested and required by this subchapter, and if the review is not completed, as noted in division (B) above, prior to the five-year anniversary date of the special use permit, or subsequent five-year anniversaries, then the applicant for the permitted wireless telecommunications facilities shall receive an extension of the special use permit for up to six months, in order for the completion of the review.

(D) If the holder of a special use permit for wireless telecommunications facilities does not submit a request for re-certification of such special use permit within the time frame noted in division (A) above, then such special use permit and any authorizations granted thereunder shall cease to exist on the date of the fifth anniversary of the original granting of the special use permit, or subsequent five-year anniversaries, unless the holder of the special use permit adequately demonstrates that extenuating circumstances prevented a timely re-certification request. If the town agrees that there were legitimately extenuating circumstances, then the holder of the special use permit may submit a late re-certification request or application for a new special use permit.

(Ord. passed 4-5-2010; Ord. passed 5-3-2021)

§ 152.158 EXTENT AND PARAMETERS OF SPECIAL USE PERMIT.

The extent and parameters of a special use permit for wireless telecommunications facilities shall be as follows:

(A) Such special use permit shall be non-exclusive.

(B) Such special use permit shall not be assigned, transferred or conveyed without the express prior written notification to the town.

(C) Such special use permit may, following a hearing upon due prior notice to the applicant, be revoked, canceled or terminated for a violation of the conditions and provisions of the special use permit, or for a material violation of this subchapter after prior written notice to the holder of the special use permit.

(Ord. passed 4-5-2010; Ord. passed 5-3-2021)

§ 152.159 APPLICATION FEE.

(A) At the time that a person submits an application for a special use permit for a new tower, such person shall pay a non-refundable application fee of $5,000 to the town. If the application is for a special use permit for co-locating on an existing tower or other suitable structure, where no increase in height of the tower or structure is required, the non-refundable fee shall be $2,500.

(B) No application fee is required in order to rectify a special use permit for wireless telecommunications facilities, unless there has been a visible modification of the wireless telecommunications facility since the date of the issuance of the existing special use permit for which the conditions of the special use permit have not previously been modified. In the case of any modification, the fees provided in division (A) above shall apply.

(Ord. passed 4-5-2010; Ord. passed 5-3-2021)

§ 152.160 PERFORMANCE SECURITY.

(A) The applicant and the owner of record of any proposed wireless telecommunications facilities property site shall, at their cost and expense, be required, jointly if appropriate, to execute and file with the town a bond or other form of security acceptable to the town as to type of security and the form and manner of execution, in an amount of at least $75,000 and with such sureties as are deemed sufficient by the town to assure the faithful performance of the terms and conditions of this subchapter and conditions of any special use permit issued pursuant to this subchapter.

(B) The full amount of the bond or security shall remain in full force and effect throughout the term of the initial special use permit. Either the continuation of the same security or the placement of a new one will be required as part of the required re-certification and each period of re-certification thereafter, unless the town, in writing, permits a reduction in the amount or its elimination. The security for the last period of re-certification shall remain in effect until any necessary site restoration is completed to restore the site to a condition comparable to that which existed prior to the issuance of the original special use permit.

(Ord. passed 4-5-2010; Ord. passed 5-3-2021)

§ 152.161 RESERVATION OF AUTHORITY TO INSPECT FACILITIES.

In order to verify that the holder of a special use permit for wireless telecommunications facilities and any and all lessees, renters and/or licensees of wireless telecommunications facilities, place and construct such facilities, including towers and antennas, in accordance with all applicable technical, safety, fire, building and zoning codes, laws, ordinances and regulations and other applicable requirements, the town may inspect all facets of said permit holder’s, renter’s, lessee’s or licensee’s placement, construction, modification and maintenance of such facilities, including, but not limited to, towers, antennas and buildings or other structures constructed or located on the permitted site.

(Ord. passed 4-5-2010; Ord. passed 5-3-2021)

§ 152.162 ANNUAL NIER CERTIFICATION.

The holder of the special use permit shall, annually, certify to the town that NIER levels at the site are within the threshold levels adopted by the FCC.

(Ord. passed 4-5-2010; Ord. passed 5-3-2021)

§ 152.163 LIABILITY INSURANCE.

(A) A holder of a special use permit for wireless telecommunications facilities shall secure and at all times maintain public liability insurance for personal injuries, death and property damage, and umbrella insurance coverage, for the duration of the special use permit in amounts as set forth below:

(1) Commercial general liability covering personal injuries, death and property damage: $1,000,000 per occurrence/$2,000,000 aggregate;

(2) Automobile coverage: $1,000,000 per occurrence/$2,000,000 aggregate; and

(3) Workers compensation and disability: statutory amounts.

(B) The commercial general liability insurance policy shall specifically include the town and its officers, boards, employees, committee members, attorneys, agents and consultants as additional named insured.

(C) The insurance policies shall be issued by an agent or representative of an insurance company licensed to do business in the state and with a Best’s rating of at least “A”.

(D) The insurance policies shall contain an endorsement obligating the insurance company to furnish the town with at least 30 days prior written notice in advance of the cancellation of the insurance.

(E) Renewal or replacement policies or certificates shall be delivered to the town at least 15 days before the expiration of the insurance that such policies are to renew or replace.

(F) Before construction of a permitted wireless telecommunications facilities is initiated, but in no case later than 15 days after the grant of the special use permit or any re-certification of the special use permit, the holder of the special use permit shall deliver to the town a copy of each of the policies or certificates representing the insurance in the required amounts.

(Ord. passed 4-5-2010; Ord. passed 5-3-2021)

§ 152.164 INDEMNIFICATION.

(A) Any application for wireless telecommunication facilities that is proposed for town property, pursuant to this subchapter, shall contain a provision with respect to indemnification.

(1) Such provision shall require the applicant, to the extent permitted by the law, to at all times defend, indemnify, protect, save, hold harmless and exempt the town, and its officers, boards, employees, committee members, attorneys, agents and consultants from any and all penalties, damages, costs or charges arising out of any and all claims, suits, demands, causes of action or award of damages, whether compensatory or punitive, or expenses arising therefrom, either at law or in equity, which might arise out of, or are caused by, the placement, construction, erection, modification, location, products performance, use, operation, maintenance, repair, installation, replacement, removal or restoration of said facility, excepting, however, any portion of such claims, suits, demands, causes of action or award of damages as may be attributable to the negligent or intentional acts or omissions of the town, or its servants or agents.

(2) With respect to the penalties, damages or charges referenced herein, reasonable attorneys’ fees, consultants’ fees and expert witness fees are included in those costs that are recoverable by the town.

(B) Notwithstanding the requirements noted in division (A) above, an indemnification provision will not be required in those instances where the town itself applies for and secures a special use permit for wireless telecommunications facilities.

(Ord. passed 4-5-2010; Ord. passed 5-3-2021)

§ 152.165 DEFAULT AND/OR REVOCATION.

(A) If wireless telecommunications facilities are repaired, rebuilt, placed, moved, relocated, modified or maintained in a way that is inconsistent or not in compliance with the provisions of this subchapter or of the special use permit, then the town shall notify the holder of the special use permit in writing of such violation. Such notice shall specify the nature of the violation or noncompliance and that the violations must be corrected within seven days of the date of the postmark of the notice, or of the date of personal service of the notice, whichever is earlier. Notwithstanding anything to the contrary in this section or any other section of this subchapter, if the violation causes, creates or presents an imminent danger or threat to the health or safety of lives or property, the town may, at its sole discretion, order the violation remedied within 24 hours.

(B) If, within the period set forth in division (A) above, the wireless telecommunications facilities are not brought into compliance with the provisions of this subchapter, or of the special use permit, or substantial steps are not taken in order to bring the affected wireless telecommunications facilities into compliance, then the town may revoke such special use permit for wireless telecommunications facilities, and shall notify the holder of the special use permit within 48 hours of such action.

(Ord. passed 4-5-2010; Ord. passed 5-3-2021)

§ 152.166 REMOVAL OF WIRELESS TELECOMMUNICATIONS FACILITIES.

(A) Under the following circumstances, the town may determine that the health, safety and welfare interests of the town warrant and require the removal of wireless telecommunications facilities.

(1) Wireless telecommunications facilities with a special use permit have been abandoned (i.e., not used as wireless telecommunications facilities) for a period exceeding 90 consecutive days or a total of 180 days in any 365-day period, except for periods caused by force majeure or acts of God, in which case, repair or removal shall commence within 90 days.

(2) Permitted wireless telecommunications facilities fall into such a state of disrepair that it creates a health or safety hazard.

(3) Wireless telecommunications facilities have been located, constructed or modified without first obtaining, the required special use permit or modification thereof, or any other necessary authorization.

(B) If the town makes such a determination as noted in division (A) above, then the town shall notify the holder of the special use permit for the wireless telecommunications facilities within 48 hours that said wireless telecommunications facilities are to be removed, the town may approve an interim temporary use agreement/permit, such as to enable the sale of the wireless telecommunications facilities.

(C) The holder of the special use permit, or its successors or assigns, shall dismantle and remove such wireless telecommunications facilities, and all associated structures and facilities, from the site and restore the site to as close to its original condition as is possible, such restoration being limited only by physical or commercial impracticability, within 90 days of receipt of written notice from the town; however, if the owner of the property upon which the wireless telecommunications facilities are located wishes to retain any access roadway to the wireless telecommunications facilities, the owner may do so with the approval of the town.

(D) If wireless telecommunications facilities are not removed or substantial progress has not been made to remove the wireless telecommunications facilities within 90 days after the holder of the special use permit has received notice, then the town may order officials or representatives of the town to remove the wireless telecommunications facilities at the sole expense of the owner or special use permit holder.

(E) If, the town removes, or causes to be removed, wireless telecommunications facilities, and the owner of the wireless telecommunications facilities does not claim and remove it from the site to a lawful location within ten days, then the town may take steps to declare the wireless telecommunications facilities abandoned, and sell them and their components.

(F) Notwithstanding anything in this subchapter to the contrary, the town may approve a temporary use permit/agreement for the wireless telecommunications facilities, for no more 90 days, during which time a suitable plan for removal, conversion, or re-location of the affected wireless telecommunications facilities shall be developed by the holder of the special use permit, subject to the approval of the town, and an agreement to such plan shall be executed by the holder of the special use permit and the town. If such a plan is not developed, approved and executed within the 90-day time period, then the town may take possession of and dispose of the affected wireless telecommunications facilities in the manner provided in this subchapter.

(Ord. passed 4-5-2010; Ord. passed 5-3-2021)

§ 152.167 RELIEF.

Any applicant desiring relief, waiver or exemption from any aspect or requirement of this subchapter may request such at the pre-application meeting, provided that the relief or exemption is contained in the original application for either a special use permit, or in the case of an existing or previously granted special use permit a request for modification of its tower and/or facilities. Such relief may be temporary or permanent, partial or complete; however, the burden of proving the need for the requested relief, waiver or exemption is solely on the applicant to prove. The applicant shall bear all costs of the town in considering the request and the relief, waiver or exemption. No such relief or exemption shall be approved unless the applicant demonstrates by clear and convincing evidence that, if granted the relief, waiver or exemption will have no significant affect on the health, safety and welfare of the town, its residents and other service providers.

(Ord. passed 4-5-2010; Ord. passed 5-3-2021)

§ 152.168 PERIODIC REGULATORY REVIEW BY THE TOWN.

(A) The town may at any time conduct a review and examination of this entire subchapter.

(B) If after such a periodic review and examination of this subchapter, the town determines that one or more provisions of this subchapter should be amended, repealed, revised, clarified or deleted, then the town may take whatever measures are necessary in accordance with applicable law in order to accomplish the same. It is noted that where warranted, and in the best interests of the town, the town may repeal this entire subchapter at any time.

(C) Notwithstanding the provisions of divisions (A) and (B) above, the town may at any time, and in any manner (to the extent permitted by federal, state or local law), amend, add, repeal and/or delete one or more provisions of this subchapter.

(Ord. passed 4-5-2010; Ord. passed 5-3-2021)

§ 152.169 ADHERENCE TO STATE AND/OR FEDERAL RULES AND REGULATIONS.

(A) To the extent that the holder of a special use permit for wireless telecommunications facilities has not received relief, or is otherwise exempt, from appropriate state and/or federal agency rules or regulations, then the holder of such a special use permit shall adhere to, and comply with, all applicable rules, regulations, standards and provisions of any state or federal agency, including, but not limited to, the FAA and the FCC. Specifically included in this requirement are any rules and regulations regarding height, lighting, security, electrical and RF emission standards.

(B) To the extent that applicable rules, regulations, standards and provisions of any state or federal agency, including but not limited to, the FAA and the FCC, and specifically including any rules and regulations regarding height, lighting and security are changed and/or are modified during the duration of a special use permit for wireless telecommunications facilities, then the holder of such a special use permit shall conform the permitted wireless telecommunications facilities to the applicable changed and/or modified rule, regulation, standard or provision within a maximum of 24 months of the effective date of the applicable changed and/or modified rule, regulation, standard or provision, or sooner as may be required by the issuing entity.

(Ord. passed 4-5-2010; Ord. passed 5-3-2021)

§ 152.170 CONFLICT WITH OTHER LAWS.

Where this subchapter differs or conflicts with other laws, rules and regulations, unless the right to do so is preempted or prohibited by the town, state or federal government, this subchapter shall apply.

(Ord. passed 4-5-2010; Ord. passed 5-3-2021)

§ 152.171 AUTHORITY.

This subchapter is enacted pursuant to applicable authority granted by the state and federal government.